The war powers cop-out

OpArt by Paul Tong | BDN

OpArt by Paul Tong | BDN

By Stephen G. Rademaker, Special to the BDN •May 25, 2011 6:28 pm

Congressional indignation is growing over Libya. Now that U.S. military operations have continued for more than 60 days without congressional authorization, some have accused President Obama of violating the War Powers Resolution. But Congress has little standing to accuse the president of copping out on Libya.

The 1973 legislation designed the 60-day clock as a default mechanism that would kick in when Congress has not acted either to authorize or forbid a foreign military operation. President Richard Nixon vetoed the resolution largely because of the 60-day clock, arguing that it was unconstitutional because the only permissible way for Congress to tie the president’s hands is to pass legislation and present it for the president’s signature or veto. Nixon complained that “Congress is here attempting to increase its policy-making role through a provision which requires it to take absolutely no action at all. In my view, the proper way for the Congress to make known its will on such foreign policy questions is through a positive action … with each member taking the responsibility of casting a yes or no vote.”

Every president since has come to share Nixon’s view that the 60-day clock is unconstitutional. If Obama ultimately admits what his actions in Libya have made clear — that he doesn’t accept the 60-day clock either — he won’t be the first president to flip from supporting the War Powers Resolution as a candidate to opposing it in office. Jimmy Carter supported the resolution as a presidential candidate, but when Rep. Henry Hyde sought to repeal the resolution in 1995, he circulated a letter from Carter stating, “I fully support your effort to repeal the War Powers Resolution. Best wishes in this good work.”

Nor is Obama the first president to continue military operations after the 60-day clock ran out. Bill Clinton continued active military operations in Somalia for most of 1993 — including the “Black Hawk Down” incident — even though Congress never authorized that deployment.

The War Powers Resolution contains mechanisms to make it easier for Congress to take a stand when the president deploys U.S. forces into combat. It establishes an expedited procedure in the House and Senate permitting any member to force a floor vote on a resolution directing the president to withdraw U.S. forces from such deployments, and a similar procedure to force a vote on whether to declare war. That neither mechanism was invoked by any lawmaker before the 60-day deadline speaks volumes about Congress’ interest in actually voting on the Libya operation.

One reason for this reluctance may be that votes on the use of force can define careers, and lawmakers find it hard to predict what history will judge to have been “right.” Al Gore was a viable candidate for national office in 1992 because, unlike most other Senate Democrats, he had defied his party leaders and voted in favor of the Persian Gulf War. Obama was a contender in 2008 because he had not voted for war in Iraq.

Another reason for this reluctance is that Congress can easily end up looking indecisive. During the Kosovo conflict, then-Rep. Tom Campbell invoked both of the resolution’s expedited procedures to force his colleagues to take a stand. He introduced a measure directing the president to withdraw U.S. forces from Kosovo and another declaring war on Yugoslavia. During the debate he argued that his colleagues logically had to vote in favor of one of the two options. Two other options were eventually presented as well, including a Senate-passed measure that would have authorized continuation of the air campaign — but not a ground war — against Yugoslavia.

Both options that Campbell presented were defeated. The Senate-passed measure failed on a tie vote. A White House spokesman quipped that the House had “voted no on going forward, no on going back, and … tied on standing still.”

The flaw, however, was not with Campbell’s concept but with the procedures available to him to execute it. If Congress wanted to — and the House Foreign Affairs Committee is meeting this week to discuss the War Powers Resolution — it could easily construct mechanisms that would compel members to take a stand on instances such as Libya: to choose between authorizing the military operation or directing the president to end it.

Congress has never imposed such discipline on itself because in these kinds of cases some lawmakers want to keep a third option available — not just “yes” or “no” but also “maybe.” And when the time comes to make life-or-death decisions about committing U.S. forces to combat, “maybe” has often been Congress’ preferred answer. That was the real meaning of the House votes on Kosovo in 1999 and what Congress has done to date on Libya. In fact, this is why the 60-day clock was adopted — to make it easier for Congress to avoid having to say yes or no.

So long as Congress hesitates to take a stand on these kinds of military operations, the president is, by default, going to make most of the decisions. Complaints that the 60-day clock is being violated ring hollow when Congress has not done everything it can to assert itself in national decision-making on the use of force.

Stephen G. Rademaker is a principal at the Podesta Group and was an assistant secretary of state from 2002 to 2006.